Antitrust Risks Resulting from Non-Controlling Minority Shareholdings and Public Statements on Future Pricing Intentions

In case you have not seen these, we wanted to share two significant antitrust developments that may impact your business operations and strategic communications. 

1. The European Commission recently signalled a renewed interest in minority shareholdings by (i) finding that structural links (minority shareholdings) between competitors and related information flows facilitated collusion between Delivery Hero and Glovo, two competing undertakings in the European online food delivery sector and (ii) requiring Prosus to divest the majority of its 27.4% shareholding in Delivery Hero SE to obtain approval for the acquisition of Just Eat Takeaway by its parent company.  Both recent cases demonstrate how minority stakes in competitors can give rise to antitrust concerns and why it is wise to:

   • put in place clear guardrails to avoid any coordination with minority shareholders in the same or related sector and avoid the exchange of commercially sensitive information beyond what is required from an investor perspective (e.g., set up Chinese walls, avoid cross-directorships); and

   • carefully consider your minority holdings when engaging in M&A, particularly in concentrated markets and/or when it concerns leading players that closely compete.

2. In a recent judgment rejecting an appeal lodged by Michelin contesting the validity of a dawn raid conducted by the European Commission at its premises in 2024, the EU General Court considered whether unilateral public statements made by companies in earnings calls or other public announcements could amount to anticompetitive price signalling and rise to the level of coordination among competitors in violation of Article 101TFEU. The European Commission picked up the allegedly problematic public communications through a systematic algorithmic analysis that focused on companies’ public statements about forward-looking strategic business decisions and about how competitors might react to their own behavior containing phrases such as “we want to send a signal”, “we have plan to”, “the strategy is to focus on”, “we strive to stick to”, “we will do our best to”, “we are able to”, and “[it is] not our intention to go for”.

   While the Court stressed that it was only reviewing at this stage whether the Commission had sufficient evidence to conduct a dawn raid at Michelin’s premises (and not considering whether the conduct actually amounted to an infringement), it noted that it was at least plausible that the unilateral public statements by competitors that the Commission had observed could have as their object to send a signal to their competitors.  That, the Court concluded, constituted reasonable grounds to support the Commission’s suspicions relating to coordination and a potential violation of Article 101 TFEU. 

   In the current enforcement climate, companies should therefore refrain from (or at least be very careful with) any public statements on future pricing intentions, particularly if they are active in a concentrated market.  While the investigation is still ongoing, the European Commission is likely to scrutinize to what extent financial regulatory requirements called for the observed level of disclosure in earnings calls.

The attached client alert provides a summary of these developments, along with practical guidance on risk mitigation. We are happy to discuss these developments and their impact on your business.

1. Minority Shareholdings: Risk of Antitrust Scrutiny

Background. On June 2, 2025, the European Commission fined Delivery Hero and Glovo c. 330M EUR for a cartel in the online food delivery sector. This marks the first sanction by the European Commission for anticompetitive collusion facilitated by a minority shareholding.

Delivery Hero had acquired a 15% minority non-controlling stake in competitor Glovo in 2018, progressively increasing its stake before acquiring full control in 2022. During this time, Delivery Hero’s representation on Glovo’s Board of directors – and the associated access to Glovo’s sensitive information and strategic decision-making process – enabled the two firms to exchange sensitive information, allocate geographic markets, and strike a no-poach deals. Each of these three practices constitutes anticompetitive collusion between rivals.

Key risk areas. This ground-breaking decision sets out the following three key risk areas surrounding minority cross-shareholding between firms active in the same sector:

• Enhanced information access: Delivery Hero’s representatives on Glovo’s Board of directors shared Glovo’s commercially sensitive data (e.g., on its strategies, pricing, and operations) with Delivery Hero’s management. This exceeded typical investor disclosure requirements as Glovo’s commercially sensitive information was widely disseminated within Delivery Hero.

• Undue decision-making influence: Delivery Hero used its position as a Glovo shareholder (and associated voting power and approval rights) to influence Glovo’s business strategy and align it with its own business strategy. Delivery Hero did this by: (i) exercising (or threatening to exercise) its power of approval over specific Glovo strategic business decisions and (ii) influencing the position of Glovo’s other shareholders or Board members (e.g., to allocate markets between the two competitors, so that only Delivery Hero or Glovo is active in any EEA country). 

• Coordination platform: Delivery Hero used its rights as a minority shareholder (i.e., a representation on the Board with access to commercially sensitive information) to create structural ties between its and Glovo’s staff at different levels and across various functions. These staff ties led to mutual invitations to each other’s general meetings and to dedicated knowledge-sharing between specialised staff, i.e., a platform for further exchanges of commercially sensitive information between the two competitors.

Practical guidance. To minimize the risk of collusion resulting from minority shareholdings, we recommend implementing the following best practices:

• Implement formal information barriers within the context of the minority stake;

• Limit cross-directorship (i.e.,the representative on the target’s Board should not also be on the minority shareholder’s own Board);

• Implement strict clean team rules covering both the negotiations for acquiring a minority stake and the subsequent exercise of shareholder rights (i.e., the minority shareholder’s representative on the target’s Board should not report out on the target’s commercially sensitive information);

• Set out clear minority investor protocols in shareholders’ agreements that limit the minority shareholder’s access to the target’s commercial information to only what is needed for the effective exercise of shareholding rights; and

• Appoint Board representatives with appropriate compliance training.

In conclusion, it is critical to avoid the sharing of commercially sensitive information beyond investor needs as this could be sufficient for an antitrust infringement. Companies must also put in place safeguards to minimize the risk of coordination with minority shareholders in the same or related sector – especially where the alignment of financial interests in case of significant minority stakes increases the incentives to align commercial strategies. The European Commission often seizes employees’ texts and instant messages over apps (e.g., WhatsApp), so even such informal exchanges can become the foundation of an antitrust case.

2. Public Communications: Risk of Attracting Dawn Raids

Background. In January 2024, the European Commission dawn raided several tire manufactures, including Michelin, for suspected anticompetitive price signalling through earnings calls.

Key risk area. The European Commission deployed a systematic algorithmic analysis to monitor several hundred thousand earnings calls across multiple sectors, utilising search terms designed to identify suspicious statements about competitors’ behaviour and companies’ future market intentions. For instance, the European Commission identified potentially collusive statements beginning with “we want to send a signal”, “we have a plan to”, “the strategy is to focus on”, “we strive to stick to”, “we are able to” and “[it is] not our intention to go for”. The European Commission then conducted a qualitative analysis of the potentially collusive statements to check if their context corroborated a theory of anticompetitive price signalling between competitors (e.g., looking at the timing and content of the public statements made in the same period by competitors). 

EU General Court’s key findings. Michelin appealed against the European Commission’s inspection, claiming, among others, that public earnings calls are a standard, even mandatory practice and therefore do not justify a dawn raid. The EU General Court in rejecting Michelin’s appeal, clarified that even unilateral public statements (such as statements made in earnings calls) may be the basis of anticompetitive collusion between competing firms (although it did not at this stage take a position on whether the statements observed actually amounted to collusion or violation of Article 101 TFEU).

• To conduct a dawn raid, the European Commission only needs indicia justifying a reasonable suspicion that firms have colluded in violation of competition law.

• The EU General Court rejected arguments that the public statements were (i) “commonplace” or standard industry practice, or that (ii) financial transparency obligations justified such communications (e.g., replying to questions in earnings calls). 

Implications. Practical guidance. The European Commission has now developed sophisticated surveillance systems to detect and analyse linguistic patterns indicating coordination. To minimize the risk of collusion resulting from public statements (such as earnings calls), we recommend implementing the following best practices:

• Avoid making (even unilateral) public statements expressing future pricing intentions, even reactively, in particular when operating in concentrated markets;

• Limit statements in earnings calls to what is necessary and strictly required under securities and other financial regulatory rules;

• Implement strict guidelines on do’s and don’t’s for financial disclosures;

• Do not take a position on competitors’ behavior in any public statements, but instead focus on the company’s own experience and developments; and

• Use neutral answers to reply to questions raised in public, rather than disclosing concrete anticipated strategies or price levels.

Given the European Commission’s increasing sophistication in its efforts to unearth collusive parallel conduct by firms, public statements made by companies containing potentially competitively sensitive information will likely remain a focal area of enforcement.